06 Dec What Documents Helped to Create a Legal Tradition Based on Laws and Justice
Styles of application of the rules also vary from one legal institution to another within the same legal system. Variations in local political culture lead to different styles of enforcement in different police services (Wilson, 1968), criminal courts (Levin, 1972) and regulatory bodies (Hutter, 1988). Variations in the application of the rules also result from the personality, role concepts and political commitment of individual decision-makers; the skill and perseverance with which some parties or their counsel present their arguments; and the likelihood that the decision will be reported in the news media or subject to professional review and criticism. U.S. Court of Appeals judges are less likely to decide cases based on their political values when serving on committees with judges from another political party (Cross & Tiller, 1998). Regulators tend to apply the rules legalistically when exposed to public criticism for perceived laxity (Bardach & Kagan, 1982) and adopt a retrograde style when potential complainants remain silent or violations are supported by political authorities (Gunningham, 1987). Court officials are more likely to circumvent the rules when confronted with individual subjects face-to-face, such as in “corner bureaucracies” (Lipsky 1980), than when decision-making is based on paper records or takes place in highly formal settings (Kagan 1978, p. 152). Overall, the way in which legal rules are applied is shaped by the interaction of a legal institution`s political environment, its clientele, its legal culture and the way it recruits, trains and evaluates its staff.
The ACLU, the NAACP founded in 1909, and unions whose right to exist had not yet been recognized by the courts began challenging constitutional violations on behalf of those who had already been expelled. This was the beginning of what is now called the public law. They provided the missing ingredient that ultimately allowed our constitutional system and the Bill of Rights to work. The protection of rights was not the government`s only objective. It was always expected to protect the community from external and internal threats, ensure economic growth, and guide foreign policy. However, it was not the government`s job to tell people how to live their lives, what religion they believed in, or what to write about in a pamphlet or newspaper. In this sense, the idea of individual rights is the oldest and most traditional American value. For many judges and administrators, decision-making is a two-step process: the decision-maker first “examines” pre-existing rules to see what they appear to require, and then “looks to the future” to assess the implications of the rules-based decision in terms of the decision-maker`s understanding of fairness or good public order (Cardozo, 1921, pp.
19-25, Wasserstrom 1961, Kagan 1978). Even if he thinks that the rules-based decision “doesn`t make sense,” he may still feel compelled to follow the rule; That would be a legalistic style of decision-making. In a different style – unauthorized discretion – decision-makers ignore the rule and follow their own judgment (Kagan, 1978, p. 93). A third style, withdrawal, involves delaying the parties, pushing them to settle the dispute, or finding other ways to avoid difficult decisions. Finally, in so-called legal policy, the legal decision-maker reinterprets the pre-existing rule by adopting innovative interpretations or policy exceptions that support the desired outcome (Feeley & Rubin, 1998). At first, the answer was not clear. Thomas Jefferson believed that the federal judiciary should have this power; James Madison agreed that a system of independent courts would be “an impenetrable bulwark” of freedom. But the constitution did not make it explicit, and the question would not be resolved until 1803. This year, for the first time, the U.S.
Supreme Court struck down a congressional bill as unconstitutional in a case called Marbury v. Madison. While the facts of this case were fairly mundane (a dispute over the Secretary of State`s refusal to appoint four Senate-appointed judges), the principle enshrined in it – that the Supreme Court had the power to strike down congressional acts that violated the Constitution – proved essential to developing and protecting most rights. Americans appreciate it today. According to one eminent jurist, judicial independence was “America`s most distinctive contribution to constitutionalism.” Moreover, almost all comparative law classifications are based on private law, which weakens their usefulness for public law comparisons. For example, an examination of judicial review of statutes as an aspect of constitutionalism might place England and France in one category, but Germany and the United States in another, confusing the dichotomy between civil law and common law. Mirjan Damas̆ka (1986), in his comparative study of procedures and the administration of justice, rejected the usual classification of legal families. He formed a four-cell Weberian model that took into account the structure of state authority on one axis (hierarchy or coordinates) and the mode of action on the other (conflict resolution or policy implementation). Illustrations include the judge active in civil procedure of continental Europe in the hierarchical cell of conflict resolution, civil and criminal procedures of the English and American states in the cell for the coordination of conflict resolution, Soviet civil and criminal procedures in the hierarchical cell for the implementation of the policy, and litigation in the U.S. public interest in the policy implementation coordination cell. The study speaks volumes about the differences between investor protection laws in different countries and the impact of these protections on ownership concentration.
Its greatest importance is the presentation of methodological solutions to problems arising from transnational comparisons of legal systems. La Porta and his co-authors are the authors of a number of articles examining transnational differences in law; They try to explain why laws differ from country to country and what impact these legal differences have on economic performance and institutional structure. Because of the diversity of legal traditions, these studies face significant empirical difficulties. The Länder also offer creditors various legal protections. The rules govern whether creditors can immediately repossess assets if the debtor goes bankrupt, or must wait to see whether they can subordinate creditors` claims to those of other interests, give management more or less control in bankruptcy, etc. La Porta et al. compiled an index of creditors` rights and again found large differences between countries, with common law countries offering the greatest protection. William Lambarde was an influential historian of the sixteenth century who advanced the popular theory that England had an ancient constitution that preserved fundamental individual liberties since time immemorial.